Court File and Parties

CITATION: Poblete v. Human Rights Tribunal of Ontario, 2021 ONSC 5718

DIVISIONAL COURT FILE NO.: 295/21

DATE: 20210825

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: POBLETE v. HUMAN RIGHTS TRIBUNAL OF ONTARIO et al.

BEFORE: D.L. Corbett J.

COUNSEL: Mr Poblete, self-represented

HEARD: In Writing, In Chambers

Endorsement

[1] On April 19, 2021, the applicant sought to commence an application for judicial review from decisions dated February 26, 2019, April 30, 2020 and June 18, 2020.

[2] By case management direction sent April 30, 2021, I directed as follows:

The applicant is requested to provide the court with copies of the decisions he seeks reviewed in Divisional Court.

The current deadline to bring an application for judicial review is thirty days from the date of the decision being reviewed.

Prior to the summer of 2020, the deadline was 6 months.

The court has discretion to extend the time to seek judicial review, but it is for the applicant to bring a motion seeking the extension if he has missed the deadline.

The applicant is asked to explain why he does not require an extension to bring his application for judicial review. If the applicant understands that he needs an extension, he is to advise when he will provide the court with his motion materials seeking an extension.

The applicant is asked to respond to these queries by May 14, 2021.

Responding parties are directed not to respond to these issues unless the court subsequently directs otherwise.

[3] By email dated May 6, 2021, Mr Poblete responded to the court’s concerns, indicating that he was hampered in moving forward because he is self-represented and unfamiliar with court processes. He stated that he had tried to obtain representation without success. And he provided arguments about the importance of deciding cases on the merits rather than based on “technicalities”. He attached various documents to his email including:

(a) A letter from Tribunals Ontario dated October 16, 2020, advising him that he had exhausted the process before the Tribunal and his only remaining recourse is in Divisional Court;

(b) A letter from Tribunals Ontario dated November 23, 2020, essentially repeating the contents of the letter of October 16, 2020 (and from which I infer that Mr Poblete had repeated his request for further proceedings below after he had been advised that his sole remaining recourse was to Divisional Court);

(c) A printout, untitled, addressing the time limits for applications for judicial review;

(d) A copy of Chief Justice Strathy’s remarks at the Opening of Courts in September 2020;

(e) Copies of the decisions impugned in the application for judicial review.

By case management direction sent May 8, 2021, I directed as follows:

The applicant's application is out of time. Therefore, he must bring a motion for an extension of time in which to bring this application if he wishes to proceed with it. The information set out below is intended to assist the applicant as to what is required on a motion for an extension.

As summarized recently by the Divisional Court in Go Fleet Corporation v. So, 2021 ONSC 2199, the factors to be taken into account on a motion for an extension are:

(a) whether the moving party formed a bona fide intention to appeal within the appeal period.

(b) the length of and explanation for the delay.

(c) any prejudice to the responding party by the delay.

(d) the merits of the proposed appeal.

When determining whether the justice of the case warrants an extension, the court must consider and balance these factors as well as any others that may be relevant.

In his motion, the moving party will need to focus in particular on the reasons for his delay and on the merits of the proposed application.

The impugned decisions of the HRTO dismiss Mr Poblete's complaint as an abuse of process because of his failure to follow clear directions to explain the basis of his human rights complaints in summary form. As part of his motion for an extension, Mr Poblete should understand that he will need to provide this court with the same sort of information: a digestible summary of the essential nature of his claim. Mr Poblete will also have to explain why he failed or refused to provide this summary to the HRTO when he was directed to do so, and why, he says, the HRTO acted unreasonably in dismissing his claim when he failed or refused to follow the HRTO's directions.

Mr Poblete is directed to advise the court by May 21, 2021 as to whether he intends to move for an order to extend the deadline to bring the application, and, if he is going to bring such a motion, when he will serve all of his motion materials for this motion. The court will then give further scheduling directions.

[4] Mr Poblete sent an email to the court on May 14, 2021, which stated as follows:

Good afternoon. In response to Honourable Justice Corbett request that I must bring a motion for an extension of time may I offer you what Honourable Justice Marie-France Bich said on:

On October 13, 2016, the Québec Court of Appeal, through the Honourable Justice Marie-France Bich, rendered an important and unanimous judgment, holding that a union will retain the exclusive right of representation of its members in petitioning for judicial review, even where a court has previously ruled that the union has failed in its duty to represent those same employees.

Although the solution proposed by the Court of Appeal may complicate the notion that motions for judicial review must be filed within a "reasonable" period of time, which is generally considered to be 30 days, the Québec Court of Appeal found that the filing of new proceedings under section 47.2 of the Labour Code, when the Union refuses to file a motion for judicial review, could constitute exceptional circumstances under which the notion of "reasonable time" may be extended. Thus, in certain circumstances, the employer may expect to receive a motion for judicial review several months or even several years after an arbitrator has rendered his or her award, should a tribunal or a court recognize the employees were once more wrongfully represented by their trade union, as per section 47.2 of the Labour Code.

Please see attachments including a material from McCarthy Tétrault titled: Section 47.2 of the Labour Code: How it affects you.

[5] This court issued a further direction on May 26, 2021, as follows:

Mr Poblete has provided this court with reference to a decision from the Quebec Court of Appeal that could bear on whether an extension should be granted to commence this application. This does not change the fact that Mr Poblete must bring a motion for an extension in this court if he wishes to proceed. He may rely on the decision of the Quebec Court of Appeal in support of his motion, but he will also need to address all of the points of concern raised in this court's prior direction.

A motion must include (a) a notice of motion seeking an extension; (b) affidavit evidence explaining the history of the case and the basis on which an extension is sought; and (c) affidavit evidence addressing the issues of concern related to the underlying merits of the proposed application.

Mr Poblete should serve his motion materials and provide a copy of them to this court by email by June 11, 2021, failing which the court will direct the Registrar to deliver a notice pursuant to R.2.1 of the court's concern that the application should be dismissed summarily for being out of time.

[6] Mr Poblete wrote back to the court on May 26, 2021, asking for an extension to June 30, 2021 to serve his motion materials. By direction from the court also on May 26, 2021, the court granted this request.

[7] On June 9, 2021, Mr Poblete wrote to the court again, repeating what he had said previously about jurisprudence from the Quebec Court of Appeal, stating that he had had communications with OPSEU in January 2021 reflecting the same information given to Mr Poblete by Tribunals Ontario in October and November 2020, and requesting more time to prepare his documents for the court.

[8] The court provided the following direction in response to Mr Poblete’s request on June 9, 2021:

Mr Poblete asks for a further undefined extension in the time to bring a motion to extend the time to bring his application for judicial review. This request is denied for the following reasons.

The court appreciates that Mr Poblete is self-represented and is entitled to assistance from the court in bringing his matters forward. The court also accepts that Mr Poblete has faced health and other personal issues in addressing his case. The fact remains that Mr Poblete has purported to commence an application that is not timely and has not yet taken steps to rectify this issue.

If Mr Poblete does not bring the required motion within the time stipulated by the court previously, the court will direct that a R.2.1 notice be issued. Mr Poblete will then have 15 days to respond to that notice. The court will then decide whether a further extension to bring an extension motion should be granted or whether the case should be dismissed.

[9] By email dated June 11, 2021, Mr Poblete wrote as follows:

May I ask the court for reconsideration to allow me for an extension of time at least up to July 18, 2021 to put everything together as required by the Court.

I have no intention at all to bind the court for a long time without justification but at the same time I want to provide the court with factual information. My grievance covered five job competitions from 2012-2016.

The email then continues to address some of the substantive issues in Mr Poblete’s application.

[10] The court refused this request by email dated June 11, 2021, as follows:

Case management is not a reiterative process or discussion. The court has issued its directions. Those directions stand.

[11] By email from Mr Poblete dated June 29, 2021, Mr Poblete provided the following to the court:

(a) Copy of a powerpoint presentation from a Law Foundation Provincial Training Conference dated November 2020 respecting procedural fairness;

(b) An article (the authorship and publication of which is not identified) dated July 2, 2020 entitled “Challenging government action in Canada”;

(c) An article entitled “Human Rights: What Does Fairness Have to do with It?” dated 2001, by Yola Grant, with no identified publication;

(d) A long memo from Mr Poblete to court staff explaining what he is seeking in his application for judicial review.

In his covering email, Mr Poblete writes “Attached please find a copy of the documents for Judicial Review. I decided to submit what is required a day early to make sure it is submitted on time. For whatever reason this is the third time I am trying to send this.”

[12] The court then received four more emails from Mr Poblete between June 30 and July 5, attaching numerous documents similar to the documents attached to the email of June 29, 2021.

[13] By direction dated July 6, 2021, the court directed as follows:

This court has directed the applicant that he requires an order extending the time in which to bring his application. It has given the applicant directions about how to bring such a motion if he wishes to proceed. The court has received various documents from the applicant since these directions were issued but has not received motion materials for a motion for an extension.

The registrar is directed to give the applicant notice pursuant to R.2.1 that the court is considering dismissing the application for failure to obtain an extension of time in which to bring the application. The applicant will have 15 days in which to respond. The applicant's response shall be limited to 10 pages, but in addition, he may still serve a motion for an extension of time in support of his response to the R.2.1 notice.

The applicant is directed to send no further materials to the court other than his response to the R.2.1 notice and any motion he serves seeking an extension.

The Registrar then gave Mr Poblete notice pursuant to R.2.1.01, requiring a response from Mr Poblete within 15 days and limiting that response to ten pages in length.

[14] Mr Poblete then sent emails to the court on July 12, July 14, July 19, July 26, July 30, and two further emails on August 9, 2021. One of the documents attached to these emails is styled as a notice of motion seeking an extension. It could serve as an adequate notice of motion, read liberally, making allowances for the fact the Mr Poblete is self-represented. The Notice of Motion does not address the issues identified by this court on a motion seeking an extension of time, and in particular, the explanation for delay and the merits of the appeal. No evidence has been filed for the extension motion.

[15] Enough is enough. This court has given Mr Poblete multiple opportunities to bring a motion for an extension. The one document that has been provided by Mr Poblete that begins to address the court’s requirements is, itself, so deficient on its face that it could not ground the relief sought. The court has provided Mr Poblete with clear directions on how to proceed; he has not followed them. Mr Poblete was advised, clearly and correctly, that his only remaining recourse was to this court as early as October 2020. He did not proceed in this court until April 2021. The application is long out of time, no extension has been granted, and none has been sought on a proper motion before this court, and no reasonable explanation has been provided for the long delay. The application is frivolous, vexatious and an abuse of process because it is brought out of time and no proper motion has been brought for an extension of time. The application is dismissed pursuant to R.2.1.01, without costs.

___________________________ D.L. Corbett J.

Released: August 25, 2021